Are foreign companies guilty of war crimes for pillaging the Congo?

A report was released last week by the Open Society Justice Initiative, penned by University of British Columbia professor James Stewart, on “Corporate War Crimes,” a primer on how pillage can be tried as a war crime.

Interesting and contentious stuff. Apparently The Hague Regulations of 1907 and the Geneva Conventions of 1949 prohibit pillage, and most domestic jurisdictions and international courts include laws against pillage.

But what Stewart is getting at is more than just soldiers running amok on the battlefield. He wants to know whether corporations can be held accountable for wrongfully acquiring property through complicity with armed force. The clearest precedents for this were during World War II tribunals – IG Farben, a German company, was charged with exploiting the military occupation of France to obtain property without the proper consent of the lawful owner. That is pretty straight-forward pillage. Stewart goes on to show, however, that Farben and other companies were also found guilty of having received stolen goods, i.e. buying property that had been unlawfully acquired by a third party.

In the case of the Congo, Stewart argues that companies/countries could be found guilty of pillage of warehouses and stocks (as with the AFDL/Rwandan invasion of 1996) but also for buying minerals that were mined outside of legal concessions or in violation of Congolese law. One could see, also, how his argument could extend to any minerals mined through forced labor or even tainted by extortion or similar abuse.

Apparently the ICC does not have jurisdiction to try corporate crimes, but national courts do. Also, it will be difficult to prove mens rea, especially for buying stolen goods, although some jurisdictions are pretty lenient about this.

Seems to be a long way off in the Congo, but interesting stuff.